Do I gather that Justice Stevens is ‘Acting Chief Justice’? Does this give him any tactical advantage?

When the Chief Justice is incapacitated or recused, the next most senior Justice presides over oral arguments. I assume (but do not know) that the same applies to opinion assignment: when the Chief Justice is not in the majority, the next most senior Justice who is in the majority assigns the opinion. Thus my guess is that the opinion in this case will either be assigned by Stevens or Scalia, as the next two most senior justices, depending on which of those two gets a majority.

“It was a great American patriot, Thomas Paine, who warned, ‘He who — that would make his own liberty secure must guard even his enemy from oppression, for if he violates that duty, he establishes a precedent that will reach unto himself.’”

Do I gather that Justice Stevens is ‘Acting Chief Justice’? Does this give him any tactical advantage? Could he get a 5-3 against Scalia, Thomas and Alito by, for example, asking Kennedy to write a majority finding that claimed jurisdiction but reserved the Court’s right to review the validity of the Military Commission until after Hamdan has had his hearing (which seems to be an idea that appeals to him)? Souter, Breyer, Ginsberg and Stevens himself could then join the judgement but write separate opinions as to reasons, if need be. That would keep things afloat – which may be the way they want to play it.

If Brian G wants to discard the presumption of innocence, then Congress should read the Constitution and add that no case is to be tried at any court all year long.

Of course it wouldn’t happen, but in theory it would be permissible.

Compare civilian criminals, whom one might rightly term "enemies" of society: regardless of how reprehensible the public may perceive them, we insist on trying them in court rather than in public opinion, thereby risking their acquittal, for the sake of preserving our constitutional values. Though the venue may be different (military as opposed to civilian), the normative values argument is the same. Ergo, what logical objection can there be to stripping the federal courts of their jurisdiction?

Anyway, correct me if I’m wrong (this law student has too many papers due right now to have read the briefs), but I don’t think anyone in this case is arguing that the Supreme Court should be deciding the substantive facts of Hamdan’s (or anyone else’s) detention. What’s at stake is the sufficiency of the military commissions to deciding on those facts. N’est-ce pas?

Article III states in relevant part, “…the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

Of course it wouldn’t happen, but in theory it would be permissible.

Chiefly, Who is Scalia addressing? Obivously, at the lowest level of generality, he was replying to a question posed; thus, he was addressing the poser of the question. At a higher level of generality — one that takes politics into account, Scalia is mobilizing conservatives (e.g., Ed Whelan and his audience, Rush Limbaugh and his audience) by making provocative statements that the AP will most probably air. Because he makes what is a convincing argument if true — the Court has NEVER done XYZ, it automatically puts conservatives on notice that if the Court does XYZ, then the Court is deserving of criticism.

An obvious rejoinder is that Hamdan, as a case, was likely to garner extraordinary attention and criticism in any event; but this rejoinder is too general. The relevant theory is that Scalia cares about the kind of criticism to which the Court is exposed and cares about the the size of the audience that pays attention, because the effect of his statement (from which one could try to induce his motive) is to influence the internal dynamics of the Court. Why?

Let’s see. Roberts is recusing himself, and there is the possibility of a 4-4. Alito has been confirmed as a “conservative” jurist, but has yet to take a position on the War on Terror as a Supreme Court Justice. The stakes are high for Alito’s reputation within the conservative community — “Don’t become a Kennedy” — and this only serves to raise the stakes. In other words, a decisive win is needed, a persuadable vote could be on the fence, and a likely vote is out of play.

But Alito is not enough. Scalia needs to force the hand of those who seek to keep Court opinions consistent with public opinion and those who hope to steer the Court onto a path on the right side of history. One need only scroll down on http://www.orinkerr.com to see a post on Breyer commenting about O’Connor, and one only need look to Kennedy’s majority opinions in Gonzalez v. Oregon, Roper v. Simmons, and Lawrence v. Texas to note that there are Justices who care about international opinion, national opinion, and public opinion in general, because they believe it links the Court’s jurisprudence to public legitimacy. The line that Scalia is drawing here by making a provocative statement from Switzerland, much as John Kerry did from Davos, Switzerland in calling for Alito’s filibuster (I will not quote Hegel here, but I think the farce came first in this context), is that the elites of the United States and the elites of Europe have different mass bases before which they must appear legitimate. A Supreme Court opinion that is consistent with what elites in Switzerland think and inconsistent with what the mass of Americans think would appear an illegitimate opinion: Scalia is actively promoting the likelihood that those interested in legitimacy vote his way by stirring up opposition to an outcome inconsistent with what American public opinion will be after it is shaped by his comment that the Court NEVER DOES XYZ (and the implicit: a. the Court never does XYZ for categorically good reasons; and b. thus, the Court should not do XYZ in the case of Hamdan). In other words, this is not just a push on Alito, but also a push on Breyer and Kennedy to separate from Stevens, who thinks Rasul was a wonderful day in the park, rather than a departure from bedrock American principles. If you think about it, that’s 5 votes: assuming Scalia and Thomas will vote how Scalia suggests he might, Alito, Breyer, and Kennedy are the other “gettable” votes for Scalia in the absence of Roberts. (Note: This analysis is not a slight against Thomas; Thomas is more conservative than Scalia.)

So, what is Scalia doing? Trying to cobble together a 5-3 in the absence of Roberts!